J-A26042-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BEAVER RIVER RAILS TO TRAILS 

ASSOCIATION,

:

:

IN THE SUPERIOR COURT OF 

PENNSYLVANIA

:

Appellant :

:

v. :

:

GENEVA COLLEGE AND AES REALITY, 

LLC

:

: No. 427 WDA 2016

Appeal from the Order entered February 18, 2016

in the Court of Common Pleas of Beaver County,

Civil Division, No(s): 10112 of 2011

BEFORE: BENDER, P.J.E., RANSOM and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 5, 2016

Beaver River Rails to Trails Association (“BRRTA”) appeals from the 

February 18, 2016 Order (hereinafter “the Dismissal Order”) that sustained 

the Preliminary Objections to BRRTA’s Complaint filed by AES Realty, LLC 

(“AES”), and dismissed BRRTA’s claims against AES.1 We affirm.

In January 2011, BRRTA filed a Complaint against AES and Geneva, 

seeking declaratory relief against both parties concerning BRRTA’s rights 

under a 2004 Lease Agreement between Geneva and BRRTA. According to 

BRRTA, that Agreement granted it the right to construct a hiking and bicycle 

trail across a certain parcel of real property (hereinafter the “Property”), 

 

1 Notably to this appeal, the Dismissal Order did not address BRRTA’s 

remaining claim against the other defendant named in the Complaint, 

Geneva College (“Geneva”). However, on March 22, 2016, the trial court 

entered an Order terminating BRRTA’s case against Geneva due to inactivity. 

Geneva is not a party to the instant appeal.
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which Geneva had conveyed to AES in 2008.2 However, BRRTA never 

served AES or Geneva with the Complaint, and there was no activity on the 

case for over four years. In July 2014, and May 2015, BRRTA filed Praecipes 

to reinstate the Complaint.3

In July 2015, AES filed Preliminary Objections seeking the dismissal of 

BRRTA’s Complaint. AES asserted that (1) the trial court lacked personal 

jurisdiction over AES due to BRRTA’s substantial delay in serving AES with 

process; and (2) BRRTA was precluded from bringing the instant case based 

on a prior stipulation (hereinafter “the Stipulation”). BRRTA had previously 

entered into the Stipulation with AES in a separate lawsuit brought by AES 

against BRRTA in 2010, concerning the same Property at issue in this case.4 

On February 18, 2016, the trial court entered the Dismissal Order, 

sustaining AES’s Preliminary Objections and dismissing BRRTA’s claim 

against AES alone, with prejudice. In an accompanying Memorandum, the 

trial court stated that the action against AES must be dismissed because (1) 

 

2

In its sole count against AES, BRRTA sought a declaration that (1) AES 

acquired the Property subject to an oral addendum to the Lease Agreement 

between BRRTA and Geneva, which extended the time for BRRTA to 

complete its hiking/biking trail over the Property; and (2) BRRTA had a valid 

easement over a portion of the Property to construct the trail.

3 BRRTA served AES with a copy of the reinstated Complaint on June 9, 

2015. However, the record does not indicate that BRRTA served Geneva 

with the reinstated Complaint.

4

In the Stipulation, the parties essentially agreed that construction of 

BRRTA’s trail would take place only on land owned by Geneva, and not on 

AES property.
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BRRTA made no good faith effort to timely serve AES with the Complaint 

(which was not served until after the expiration of the four-year statute of 

limitations), thus depriving the trial court of personal jurisdiction over AES; 

and (2) the Stipulation precluded BRRTA’s instant action, as it concerned the 

same Property at issue in this case. See Trial Court Memorandum and 

Order, 2/18/16, at 4-9. 

On March 15, 2016, BRRTA timely filed a Notice of Appeal from the 

Dismissal Order. In response, the trial court entered an Order on March 22, 

2016 (hereinafter “the Rule 1925(b) Order”), directing BRRTA to file a 

concise statement of errors complained of on appeal within twenty-one days, 

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). However, 

BRRTA did not file a concise statement within twenty-one days. On May 4, 

2016, the trial court issued a Pa.R.A.P. 1925(a) Opinion, ruling that BRRTA 

had waived all of its issues on appeal for its failure to file a Rule 1925(b) 

concise statement. 

On June 16, 2016, sixty-five days after the expiration of the time set 

forth in the Rule 1925(b) Order, BRRTA’s counsel, Gregory Douglass, Esquire 

(“Attorney Douglass”), filed an Application for extension of time to file a 

concise statement, nunc pro tunc (hereinafter “the Application for 

Extension”). Therein, Attorney Douglass alleged that he never received a 

copy of the Rule 1925(b) Order, and first became aware of it when he 

received the trial court’s Rule 1925(a) Opinion on May 5, 2016. By an Order 
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entered on June 16, 2016, the trial court granted the Application for 

Extension, and ordered Attorney Douglass to file the concise statement 

within one day of the Order. On June 16, 2016, Attorney Douglass filed his 

Concise Statement, nunc pro tunc.

5

In the interim, on June 8, 2016, this Court issued a Rule to Show 

Cause upon BRRTA, requiring it to explain why its appeal from the Dismissal 

Order is not interlocutory and unappealable. This Court pointed out that the 

Dismissal Order disposed of only BRRTA’s claims against AES, and the claims 

against Geneva remained pending. BRRTA filed a response letter, asserting 

that there were no pending claims against Geneva (and the Dismissal Order 

was thus final and appealable), since BRRTA had never served Geneva with 

the Complaint. On June 24, 2016, this Court issued an Order discharging 

the Rule to Show Cause, pending a review by this panel.

BRRTA now presents the following issues for our review:

A. Did the lower court commit an abuse of discretion by denying 

the application of the continuing contract doctrine on 

Preliminary Objections[,] without [conducting] a hearing?

B. Did the lower court commit an abuse of discretion by applying 

the doctrine of res judicata[,] without [conducting] a hearing?

C. Does the doctrine of res judicata even apply where there was 

no finality in the prior case?

Brief for Appellant at 2 (capitalization omitted).

 

5 Thereafter, the trial court did not issue a new Rule 1925(a) opinion.
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Initially, we must determine whether the Dismissal Order is 

interlocutory and non-appealable.6 “The appealability of an order directly 

implicates the jurisdiction of the court asked to review the order.” In re 

Estate of Considine v. Wachovia Bank, 966 A.2d 1148, 1151 (Pa. Super. 

2009) (citation and brackets omitted). “An appeal may be taken from: (1) a 

final order or an order certified as a final order (Pa.R.A.P. 341); (2) an 

interlocutory order as of right (Pa.R.A.P. 311); (3) an interlocutory order by 

permission (Pa.R.A.P. 312, 1311, 42 Pa.C.S.A. § 702(b)); or (4) a collateral 

order (Pa.R.A.P. 313).” Stahl v. Redcay, 897 A.2d 478, 485 (Pa. Super. 

2006) (citation omitted). In the instant case, the relevant inquiry is whether 

the Dismissal Order is a final order for purposes of Pa.R.A.P. 341. Rule 341

provides as follows:

(a) General rule.-- Except as prescribed in subdivisions (d), 

and (e) of this rule[, which are not relevant to BRRTA’s instant 

appeal], an appeal may be taken as of right from any final order 

of an administrative agency or lower court.

(b) Definition of final order.-- A final order is any order that:

(1) disposes of all claims and of all parties; or

(2) RESCINDED

(3) is entered as a final order pursuant to subdivision (c) 

of this rule.

(c) Determination of finality.-- When more than one claim for 

relief is presented in an action, ... the trial court ... may enter a 

final order as to one or more but fewer than all of the claims and 

 

6 BRRTA does not address in its brief whether the Dismissal Order is a final 

or interlocutory order. Nor does the trial court in its Opinion.
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parties only upon an express determination that an immediate

appeal would facilitate resolution of the entire case. Such an 

order becomes appealable when entered. In the absence of such 

a determination and entry of a final order, any order ... that 

adjudicates fewer than all the claims and parties shall not 

constitute a final order. ...

Pa.R.A.P. 341(a)-(c) (emphasis added).7

“[O]rders [sustaining] preliminary objections and disposing of only 

some but not all of the underlying parties or claims are interlocutory and 

unappealable.” Spuglio v. Cugini, 818 A.2d 1286, 1287 (Pa. Super. 2003) 

(per curiam) (citation omitted); see also Pa.R.A.P. 341, Note (setting forth 

a partial list of orders previously interpreted as appealable as final orders 

under Rule 341 that are no longer appealable as of right, including an order 

granting judgment against one defendant but leaving pending the complaint 

against other defendants). However, when a subsequent order or judgment 

disposes of the claims as to the remaining party, the prior interlocutory 

order is rendered “final” and appealable for purposes of Rule 341. See, 

e.g., Strausser v. PRAMCO, III, 944 A.2d 761, 764 (Pa. Super. 2008) 

(explaining that where multiple defendants in a single action, who were all 

original defendants, are removed from the case in a piecemeal fashion by 

separate orders sustaining those defendants’ preliminary objections, each 

order sustaining preliminary objections becomes appealable, under Pa.R.A.P. 

341(b)(1), when the suit is resolved against the final defendant); B.K. ex 

 

7 Here, BRRTA did not petition the trial court for a determination of finality 

under subsection 341(c).
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rel. S.K. v. Chambersburg Hosp., 834 A.2d 1178, 1181 (Pa. Super. 2003) 

(stating that in an action involving multiple defendants, an order granting 

summary judgment as to one party becomes appealable after the disposition 

of the plaintiffs’ claims involving the remaining parties); Gutteridge v. A.P. 

Green Servs., Inc., 804 A.2d 643, 650 (Pa. Super. 2002) (stating that an 

order declaring the case settled as to all remaining parties renders final the 

prior orders granting summary judgment in favor of some defendants, even 

if the prior orders disposed of fewer than all claims against all parties).

Here, though the Dismissal Order was initially interlocutory because it 

did not dispose of BRRTA’s remaining claim against Geneva, it became final 

and appealable when the trial court terminated BRRTA’s case against Geneva 

(the sole remaining party), by its Order entered on March 22, 2016. See

Pa.R.A.P. 341(b)(1); Strausser, supra; B.K., supra; Gutteridge, supra. 

Accordingly, we conclude that the instant appeal is not interlocutory, albeit 

for a different reason than that advanced by BRRTA in its response to this 

Court’s Rule to Show Cause.

Before reaching the merits of BRRTA’s claims, however, we must 

address whether it has properly preserved those claims for our review, 

where it failed to timely file a Rule 1925(b) concise statement in response to 

the Rule 1925(b) Order. See Commonwealth v. Castillo, 888 A.2d 775, 

780 (Pa. 2005) (ruling that the appellant waived all of his claims on appeal 

for untimely filing his court-ordered Rule 1925(b) statement) (citing 
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Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (stating that “from 

this date forward ... [a]ppellants must comply whenever the trial court orders 

them to file a Statement of [Errors] Complained of on Appeal pursuant to 

Rule 1925. Any issues not raised in a 1925(b) statement will be deemed 

waived.”)); see also Pa.R.A.P. 1925(b)(4)(vii) (stating that “[i]ssues not 

included in the Statement and/or not raised in accordance with the 

provisions of this [Rule] are waived.”).

An en banc panel of this Court recently observed that

[o]ur [Pennsylvania] Supreme Court intended the holding in 

Lord to operate as a bright-line rule, such that “failure to comply 

with the minimal requirements of Pa.R.A.P. 1925(b) will result in 

automatic waiver of the issues raised.” Commonwealth v. 

Schofield, 585 Pa. 389, 888 A.2d 771, 774 (2005) (emphasis 

added); see also Castillo, 888 A.2d at 780. Given the 

automatic nature of this type of waiver, we are required to 

address the issue once it comes to our attention. Indeed, our 

Supreme Court does not countenance anything less than 

stringent application of waiver pursuant to Rule 1925(b): “[A] 

bright-line rule eliminates the potential for inconsistent results 

that existed prior to Lord, when ... appellate courts had 

discretion to address or to waive issues raised in non-compliant 

Pa.R.A.P. 1925(b) statements.” Id. Succinctly put, it is no 

longer within this Court’s discretion to ignore the internal 

deficiencies of Rule 1925(b) statements.

Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d 

222, 224 (Pa. Super. 2014) (en banc) (emphasis added); see also id.

(stating that “[p]reviously, we enjoyed discretion to review otherwise

untimely Rule 1925(b) statements in the event that the trial court had 

chosen to ignore the underlying untimeliness. The Castillo Court’s 

disapproval of this leniency was emphatic[.]”); Hess v. Fox Rothschild, 
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LLP, 925 A.2d 798, 803 (Pa. Super. 2007) (stating that “[w]henever a trial 

court orders an appellant to file a concise statement of matters complained 

of on appeal pursuant to Rule 1925(b), the appellant must comply in a 

timely manner.” (emphasis in original)). 

The Greater Erie Court further observed that “strict application of the 

bright-line rule in Lord necessitates strict interpretation of the rules 

regarding notice of Rule 1925(b) orders.” Greater Erie, 88 A.3d at 226 

(emphasis in original) (quoting In re L.M., 923 A.2d 505, 509-10 (Pa. 

Super. 2007), wherein this Court held that a failure by the prothonotary to 

“give written notice of the entry of a court order and to note on the docket 

that notice was given” will prevent waiver for untimeliness pursuant to 

Pa.R.A.P. 1925(b)).8

Here, in the Application for Extension, Attorney Douglass asserted that 

although he had received two copies of the trial court’s March 22, 2016 

Order terminating BRRTA’s case against Geneva (which was filed on the 

same date as the Rule 1925(b) Order), he did not become aware, or receive 

a copy of, the Rule 1925(b) Order until May 5, 2016, when he received the 

trial court’s Rule 1925(a) Opinion. Attorney Douglass filed a separate 

Affidavit certifying same. Attorney Douglass urged that this defect 

 

8 Additionally, the Greater Erie Court stressed the importance of the 

technical requirements for orders directing the filing of a concise statement 

set forth in Rule 1925. See Greater Erie, 88 A.3d at 225-26; see also

Pa.R.A.P. 1925(b)(2), (3). In the instant case, the Rule 1925(b) Order

properly complied with these technical requirements.
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constituted an “extraordinary circumstance,” under Pa.R.A.P. 1925(b)(2),9

that warranted extension of the time to file a concise statement. 

Our review discloses that the trial court’s docket contains an entry 

dated March 23, 2016, which states that “a copy of the Order dated March 

22nd 2016[, i.e., the Rule 1925(b) Order,] was placed in attorney[’]s mailbox 

for [Attorney] Douglass ....” Additionally, on the reverse side of the Rule 

1925(b) Order is a handwritten note, authored by the Deputy Prothonotary, 

which states that on March 23, 2016, “a Certified Copy of this Order was 

issued to [Attorney] Douglass by first class mail ....” By the trial court’s 

granting of the Application for Extension, it appears to have credited 

Attorney Douglass’s assertion that he did not receive notice of the Rule 

1925(b) Order until May 5, 2016. 

Even assuming the accuracy of Attorney Douglass’s assertion that 

there was a breakdown in the court’s process, he was required to petition for 

nunc pro tunc relief within a reasonable period of time. See Pa.R.A.P. 

1925(b)(2). The comment to Rule 1925(b)(2) elucidates this concept as 

follows:

In general, nunc pro tunc relief is allowed only when there has 

been a breakdown in the process constituting extraordinary 

circumstances. See, e.g., In re Canvass of Absentee Ballots 

of Nov. 4, 2003 Gen. Election, 577 Pa. 231, 248-49, 843 A.2d 

1223, 1234 (2004) (“We have held that fraud or the wrongful or 

negligent act of a court official may be a proper reason for 

 

9 Rule 1925(b)(2) provides, in relevant part, that “[i]n extraordinary 

circumstances, the judge may allow for the filing of a Statement or amended 

or supplemental Statement nunc pro tunc.”).
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holding that a statutory appeal period does not run and that the 

wrong may be corrected by means of a petition filed nunc pro 

tunc.”)[.] Courts have also allowed nunc pro tunc relief when 

“non-negligent circumstances, either as they relate to appellant 

or his counsel” occasion delay. McKeown v. Bailey, 731 A.2d 

628, 630 (Pa. Super. 1999). However, even when there is 

a breakdown in the process, the appellant must attempt to 

remedy it within a “very short duration” of time. Id.; 

Amicone v. Rok, 839 A.2d 1109, 1113 (Pa. Super. 2003) 

(recognizing a breakdown in process, but finding the delay[, of 

approximately four months,] too long to justify nunc pro 

tunc relief).

Pa.R.A.P. 1925(b)(2), cmt (emphasis added); see also Amicone, 839 A.2d 

at 1113 (stating that the standard of review applicable to the grant or denial 

of an appeal nunc pro tunc is whether the trial court abused its discretion).

Here, Attorney Douglass did not file the Application for Extension until 

forty-three days10 after he admittedly received notice of the Rule 1925(b) 

Order. We conclude that this substantial delay is not a “very short duration” 

of time, and the trial court thus abused its discretion in affording BRRTA 

nunc pro tunc relief under Pa.R.A.P. 1925(b)(2). See Amicone, supra; cf. 

Fischer v. UPMC Northwest, 34 A.3d 115, 123 n.7 (Pa. Super. 2011) 

(distinguishing Amicone and ruling that the appellants had established their 

right to nunc pro tunc relief, where they “acted within a reasonable amount 

of time by filing their motion [for leave to appeal nunc pro tunc] within five 

days of receiving a copy of the order from the prothonotary.” (emphasis 

added)). Moreover, the trial court made no finding as to the existence of 

 

10 This period of time is over double the amount of time in which the trial 

court originally gave BRRTA to file a concise statement in the Rule 1925(b) 

Order.
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extraordinary circumstances that justified a nunc pro tunc submission, and 

granted BRRTA’s Application for Extension without thereafter issuing a 

supplemental Pa.R.A.P. 1925(a) opinion.

Accordingly, Because BRRTA failed to comply with the trial court’s Rule 

1925(b) Order directing it to file a concise statement, and failed to establish 

that it was entitled to nunc pro tunc relief to file an amended concise 

statement, we are compelled to rule that it has waived the claims it now 

raises on appeal. See Greater Erie Indus., supra; Amicone, supra.

11

Order affirmed.

Judge Ransom joins this memorandum.

President Judge Emeritus Bender concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/5/2016

 

11 Nevertheless, even if BRRTA had not waived its claims on appeal, we 

would have determined that they lack merit for the reasons set forth in the 

trial court’s Memorandum issued in support of the Dismissal Order. See

Trial Court Memorandum and Order, 2/18/16, at 3-9.